DURAIRATNAM GNANASEELAN DAVID NIROSHAN GNANASEELAN Applicants v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 704

Federal Court Cour fédérale Date: 20110615 Docket: IMM-4974-10 Citation: 2011 FC 704 Toronto, Ontario , June 15, 2011 PRESENT: The Honourable Mr.

Justice Campbell BETWEEN: DURAIRATNAM GNANASEELAN DAVID NIROSHAN GNANASEELAN Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] The present Application concerns a Visa Officer’s decision with respect to an Application by the Applicant Durairatnam, a Convention Refugee and an applicant for permanent residence, that his son, Niroshan Gnanaseelan, be landed as a dependent child. [ 2 ] Under s. 2 of the Immigration and Refugee Protection Regulations , for a “child” over the age of 22 years of age to qualify as a dependent he or she must not only be financially dependent on his or her parent but also “continually enrolled in and attending a post- secondary institution that is accredited by the relevant government authority and actively pursuing a course of academic professional or vocational training on a full-time basis”. [ 3 ] The challenged decision of August 5, 2010 states that that “our overseas office [in Delhi] has determined that [Niroshan] has not been in full time studies since attaining the age of 22” (Tribunal Record, p. 45).

The reason for the rejection is expressed by the overseas office is as follows: Gnanaseelan Niroshan, turned 22 on November 09, 2008. After turning 22 years of age, he enrolled himself for a distant education program in Bachelor of Science (Mathematics) from Tamil Nadu Open University. Persons studying privately or through correspondence are not deemed to be in full time attendance . Since becoming 22 years of age, he has not been actively pursuing a course of academic, professional or vocational training on a full-time basis. [Emphasis added] (Tribunal Record, p. 47)

[ 4 ] Counsel for the Applicants argues that the overseas office made a critical unfounded finding of fact; there is no evidence on the record that the Tamil Nadu Open University’s distance education program offers education by “correspondence”, and, indeed, there is no evidence on the record to define the meaning of the word “correspondence”. I agree with this argument. [ 5 ] As a result, I find that the decision is not defensible on the facts, and is, therefore, unreasonable. ORDER THIS COURT ORDERS that: 1.

The decision under review is set aside and the matter is referred back for redetermination by a different visa officer. 2. There is no question to certify. “Douglas R. Campbell” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4974-10 STYLE OF CAUSE: DURAIRATNAM GNANASEELAN, DAVID NIROSHAN GNANASEELAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: JUNE 15, 2011 REASONS FOR ORDER AND ORDER BY: CAMPBELL J.

DATED: JUNE 15, 2011 APPEARANCES : RAOUL BOULAKIA FOR THE APPLICANT AMY KING FOR THE RESPONDENT SOLICITORS OF RECORD : RAOUL BOULAKIA BARRISTER AND SOLICITOR TORONTO , ONTARIO FOR THE APPLICANT MYLES J. KIRVAN DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO FOR THE RESPONDENT